Working Hard to Misconstrue the 2nd Amendment

Mr. Spitzer is Distinguished Service Professor of Political Science at SUNY Cortland. He is the author of eleven books, including The Right to Bear Arms and The Politics of Gun Control.

In a startling case that may single-handedly revive interest in the Second Amendment’s “right to bear arms,” the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 Friday that a D.C. law barring residents from keeping handguns in their homes violated citizens’ Second Amendment right to have guns, aside and apart from service in a militia. In carving out an “individual” right, the case of Parker v. District of Columbia proves that bad history makes for bad law.

In its 58 page ruling, the two-member Parker majority contradicts nearly fifty other federal court rulings spanning seven decades, as well as four Supreme Court rulings, all of which support the straightforward proposition that the right to bear arms exists only in connection with citizen militia service. For all of the dissembling by gun rights advocates, the amendment’s full wording is pretty clear: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” As Supreme Court Chief Justice Warren Burger once noted, the amendment “must be read as though the word ‘because’ was the opening word.”

Alone among federal rulings siding with the Parker majority is a 2001 case from the Fifth Circuit, U.S. v. Emerson, when for the first time a federal court embraced the “individualist” view. Yet even this case offered little meat to supporters of the individualist view, since the Emerson court upheld Timothy Joe Emerson’s prosecution for violating a federal gun law (he was later convicted). Until Parker, Emerson had been ignored not only by the other circuits, but even by other Fifth Circuit courts.

While accepting a militia basis for the Second Amendment, the Parker court concluded that the amendment also “protects an individual right to keep and bear arms . . . for such activities as hunting and self-defense,” with the latter encompassing “either private lawlessness or the depredations of a tyrannical government.” Parker’s linchpin for this sweeping conclusion is its assertion that the reference to “the people” when read “intratextually” (that is, assuming it has the same meaning throughout the document) “leads us to conclude that the right in question is individual.” Since Americans had a “pre-existing right” to protect themselves and hunt, these activities must also have come under the umbrella for the Second Amendment, they assert. The problem with this assertion, aside from the fact that the Bill of Rights was the product of many hands, is that no evidence supports it. All of the debate in the First Congress concerning the right to bear arms dealt with military matters. Worse, Parker’s claim conflates very different rights.

Individual self-defense was protected for centuries under the common law, just as modern criminal law recognizes legitimate personal self-defense. It had and has nothing whatever to do with the Second Amendment. And the invocations of an armed citizenry struggling to overthrow a tyrannical government arose from natural rights, not from the Constitution or the Bill of Rights. When Americans fought to end British rule, they were not only fighting against the British, but for their own, indigenous American government. Once that struggle was won, Americans traded violent overthrow for peaceful change – through the ballot box, the jury box, and the petitioning of their new government for the redress of grievances. The notion that the Second Amendment somehow enshrines a right of revolution for Americans contradicts the very idea of peaceful governance. In fact, as the Constitution says, militias are to be used to “suppress insurrections,” not cause them. And the only attempt to include hunting in the federal Bill of Rights, arising from Pennsylvania, was defeated.

More bothersome in this federal court ruling is its failure to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about. More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen’s right to privately bear arms; instead, it protected the “keeping and bearing of arms” so that the government could not be deprived of “their rightful resource for maintaining the public security” or “disable the people from performing their duty” to the government. And in 1894, the Court upheld a Texas law “prohibiting the carrying of dangerous weapons” in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

The Parker majority does devote considerable analysis to the most recent Supreme Court case on the Second Amendment, U.S. v. Miller (1939). Here again, the court labors to reformulate the meaning of a case that is perfectly clear. As Judge Karen Henderson noted in her dissent in Parker, Miller declares that “the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual states.” Indeed, the Miller court stated flatly that the Second Amendment must be interpreted by its “obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias] the declaration and guarantee of the Second Amendment were made.”

The Parker majority view, however, asserts that Miller protects only a “weapons-based” right focusing “only on what arms are protected by the Second Amendment,” because the Supreme Court upheld Miller’s conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines, as possession of that weapon held no “reasonable relationship” to a militia. Parker’s twisted logic is that the Second Amendment is about protecting weapons ownership if the weapon has military utility, from assault rifles and bazookas to tactical nuclear weapons. The absurdity of Parker’s argument underscores its desperation to achieve its real goal: to overturn the Supreme Court’s Miller decision.

Parker’s bald judicial overreach abuses history and law to achieve a partisan political end – to paste into the Constitution a personal right to own guns. Its effort is an affront to the militia tradition, constitutional history, settled court precedent, and common sense.

More Comments:

Peter K. Clarke -
10/9/2007

"I believe the weight of evidence today shows that the net effect of gun control laws is to encourage, not discourage crime" says the initiator of this thread.

1. Where is this evidence? A link to some non-NRA-infested website might be helpful

2. The only valid evidence, in my view would have to be based inter continental comparisons. It is asinine and disingenoues to compare gun laws WITHIN different parts of the US. There are essentially zero controls on transporting guns from one US jurisdiction to another. So a lowest common denominator situation pertains. By contrast, it is very difficult to carry a gun onto an international flight.

I realize that the article here is about the constitutionality, not effectiveness, gun laws. The reason why the debate is so carried out in these terms, however, seems to be that the gun nuts have so successfully intimidated US politicians that token legal debates about token gun control is most of what passes for discussion on this subject in America.

Mike Hansberry -
3/25/2007

According to Spitzer:
[i]In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about.[/i]

But the Court in Cruikshank plainly says that “The second amendemnt declares that it shall not be infringed" -the word "it" referring to the previously mentioned right of bearing arms for a lawful purpose.

From Cruikshank:
[i]The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. [/i]

Mike Hansberry -
3/24/2007

Spitzer writes:

[i]The Parker majority does devote considerable analysis to the most recent Supreme Court case on the Second Amendment, U.S. v. Miller (1939). Here again, the court labors to reformulate the meaning of a case that is perfectly clear. As Judge Karen Henderson noted in her dissent in Parker, Miller declares that “the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual states.” Indeed, the Miller court stated flatly that the Second Amendment must be interpreted by its “obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias] the declaration and guarantee of the Second Amendment were made.” [/i]

However, the Court in Miller wrote:

[i]"The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of COUNTRY and LAWS could be secured through the Militia- civilians primarily, soldiers on occasion."[/i]
(my emphasis)

The majority in Parker correctly, and in agreement with the supreme court in Miller, interprets the meaning of the "declaration" clause of the second amendment, while Judge Henderson in her dissent ignores the Miller court's analysis(above) and substitutes her own constrained view that the role of the militia was to defend the "individual states" in order to justify her claim that the phrase "a free state" is a reference to the individual states of the union rather than the nation.

J. Kent McGaughy -
3/20/2007

I used the verb "seized" because after the process in which democratically elected government appointed Hitler chancellor, he and the Nazi's did seize control.

You wrote: "You use the word "creative": sorry, but there's way too much creativity in the courts right now. For example, the claim in Lawrence v. Texas (2003) that laws against homosexuality did not exist until the 1930s. Utterly false."

Allow me to substitute the "innovative" for "creative." When I used the word creative the first time I didn't mean make stuff up. For example, I can imagine Alexander Hamilton saying something like,

"The Constitution does not say an individual can own a gun; but, neither does it say an individual can't own a gun."

Then making to remarks about how the ability of an individual to provide his own self-defense is "both necessary and proper, and therefore...."

You wrote: "I notice that as I have provided you more and more examples of how recent your theory of the Second Amendment is--entirely a 20th century idea, and utterly contrary to all 18th and 19th century decisions, commentaries, and documents demonstrating original intent, you have changed the topic. If you spend some time reading on the topic, you will quickly see how untenable your claim is."

Admittedly, you provide a lot of information for a person to take in and you've made me think. What I've been doing is reviewing some literature (not ACLU) but various books dealing with the period at hand. Once I've had an opportunity to see your new book, that'll be on the list as well.

I will say that I am skeptical about any notion of "original intent" when dealing with the framers. Four and five years after they helped write the Constitution it's evident that even they weren't sure what they meant in 1787.

You wrote: "So secret warrants, warrantless wiretapping "and all the rest" shouldn't be a concern to you, should it? "Another generation" will correct this."

Touche. Let's hope. I don't know about Idaho, but here in Texas with some of the students I encounter, there are times when I'm not so enthusiastic about our prospects as a nation in relation to "future" generations I encounter. The level of apathy is quite disturbing as well as frightening.

As I've said, we share common ground. Hopefully there will be opportunities in the future people on different sides on this issue (like us) to talk TO each other, not AT each other.

Clayton Earl Cramer -
3/20/2007

"Where did this come from? When I wrote my comment, I was thinking about when Al-Zaquari (sp?) was killed when I referred to "strategic military strike." Intelligence from Iraqi sources revealed his location, American bombers went in, killed him, within 30 minutes of the bombing Iraqi troops were on the scene, within 2 hours American troops were on the scene."

Sorry, I've talked to way too many academics who insist that they hate us only because of Israel.

"Your comment strikes at the heart of the problem of the concept of a war against terrorism. The opponent in this case, as you note, is not interested in peace. Therefore, the war will not end--unless you hunt down every single terrorist and kill them, which is not a likely prospect. If you then accept an infringement of our liberties based on this ongoing war without end."

You can't kill them all, but you can kill enough of them that they lack the structure to carry out major attacks. The core solution is for classical liberal democratic values to spread through that part of the world. That was part of the theory behind overthrowing Saddam Hussein--Iraq was regarded as one of the countries most likely to be able to make that transition (relatively secular, well-educated population, a history until 1958 of constitutional government). The left, however, decided that spreading democracy was a bad idea.

"This is my point, dictators rarely emerge in democratic societies in an instant as the result of a military coup."

Then why did you use the verb "seize" to describe how Hitler came to power?

"They emerge incrementally, the foundation for which is what may be occurring now as we allow the issuance of secret search warrants, warrantless wiretaps, and all the rest. I doubt such a thing will happen in our time, but, if tolerated, I can imagine it happening in the future."

Secret search warrants are issued by the FISA court, and have been since 1978. I'm not thrilled about them, but the criticism that Bush has been getting is that they didn't go to the FISA court for this. Exigent circumstances was the excuse, and I rather suspect was the real reason.

Warrantless wiretaps? Any communication that crosses U.S. boundaries is exempt from a warrant requirement, and has been for a very long time. It is not at all clear that the Constitution requires a warrant under those conditions.

And when you say, "all the rest" what do you mean? My experience is that a lot of academics read the ACLU's claims, and believe it. Much of what they have said as part of their fundraising efforts has been false.

"I'm not a lawyer, but my response is to suggest that individuals such as yourself get more creative. If the Supreme Court overturns the Parker decision, look again and see what you can figure out. That's the way it's done. Our history is full of bad laws being passed by one generation only to be corrected by another generation. Perserverance and respect for the process is what pays off in the end."

You use the word "creative": sorry, but there's way too much creativity in the courts right now. For example, the claim in Lawrence v. Texas (2003) that laws against homosexuality did not exist until the 1930s. Utterly false.

I notice that as I have provided you more and more examples of how recent your theory of the Second Amendment is--entirely a 20th century idea, and utterly contrary to all 18th and 19th century decisions, commentaries, and documents demonstrating original intent, you have changed the topic. If you spend some time reading on the topic, you will quickly see how untenable your claim is.

Now, I will agree that an individual rights theory creates some potential problems for certain weapon systems that were not in common use in 1789, and we might well need an clarifying amendment to the Constitution to clarify what "arms" are protected. But that is an honest method of dealing with the problem, not imagining it to be something that it isn't.

"Our history is full of bad laws being passed by one generation only to be corrected by another generation. Perserverance and respect for the process is what pays off in the end."

So secret warrants, warrantless wiretapping "and all the rest" shouldn't be a concern to you, should it? "Another generation" will correct this. But at what costs in the meantime? And the same is true with respect to these laws disarming law-abiding adults, so that they are at the mercy of monsters.

This is probably a very abstract concept to you. It isn't to me. I know way too many people who have been the victims of the savages, because they weren't armed, and the police didn't show up in time to do any good.

J. Kent McGaughy -
3/20/2007

You wrote: "Well, sure, we could nuke Israel and become an Islamic republic. Bin Laden and the President of Iran have indicated that this meets their requirements. Nothing less."

Where did this come from? When I wrote my comment, I was thinking about when Al-Zaquari (sp?) was killed when I referred to "strategic military strike." Intelligence from Iraqi sources revealed his location, American bombers went in, killed him, within 30 minutes of the bombing Iraqi troops were on the scene, within 2 hours American troops were on the scene.

You wrote: "Whether we choose to do so or not, they are at war with us. You might want to look into the history of Islamist movements; they are not interested in peace, except for their definition of it, which is a world that is completely Islamic. The phrases that Islam uses are "house of war" and "house of peace" (or variantly, "house of submission")."

Your comment strikes at the heart of the problem of the concept of a war against terrorism. The opponent in this case, as you note, is not interested in peace. Therefore, the war will not end--unless you hunt down every single terrorist and kill them, which is not a likely prospect. If you then accept an infringement of our liberties based on this ongoing war without end.

You wrote: "Hitler didn't seize control. He took it by democratic means, forming a coalition government elected in part because the voting age was lowered in 1932 to 18 years of age. The NSDAP slogan in 1932 appealed to naive sorts: "Common needs before individual needs."

This is my point, dictators rarely emerge in democratic societies in an instant as the result of a military coup. They emerge incrementally, the foundation for which is what may be occurring now as we allow the issuance of secret search warrants, warrantless wiretaps, and all the rest. I doubt such a thing will happen in our time, but, if tolerated, I can imagine it happening in the future.

You may recall (as odd as it seems) a line from the recent Star Wars film where one of the characters comments: "So ends the Republic. Not with the roar of guns, but the thunder of applause."

You wrote: "No. The legislature is certainly capable of gross violations of human rights without running afoul of the Constitution--it just has to be creative, as it has often demonstrated its ability to be. You might want to read up on the "grandfather clauses" used to prevent blacks from voting. They were brilliantly thought out--they did not discriminate based on race, but had the effect of completely prohibiting black voting."

I'm not a lawyer, but my response is to suggest that individuals such as yourself get more creative. If the Supreme Court overturns the Parker decision, look again and see what you can figure out. That's the way it's done. Our history is full of bad laws being passed by one generation only to be corrected by another generation. Perserverance and respect for the process is what pays off in the end.

Clayton Earl Cramer -
3/19/2007

"Allow me to clarify, here is an area of general agreement--especially the latter half of your statement about war not being enough. Yes, if you've located a terrorist haven strategic use of the military can work. My point about war creating more terrorists concerns situations like Iraq that involve large numbers of civilian casualties. I do not, however agree with your statement that "would require imperialism on a scale that Americans won't accept until we start losing cities to nuclear weapons." There are other solutions--not immediately viable because we haven't pursued them."

Well, sure, we could nuke Israel and become an Islamic republic. Bin Laden and the President of Iran have indicated that this meets their requirements. Nothing less.

"President Bush and VP Cheney have said as much. They've indicated that we will go wherever the terrorists go; they've indicated that as long as terrorism poses a threat to the U.S. we will be at war."

Whether we choose to do so or not, they are at war with us. You might want to look into the history of Islamist movements; they are not interested in peace, except for their definition of it, which is a world that is completely Islamic. The phrases that Islam uses are "house of war" and "house of peace" (or variantly, "house of submission").

"Terrorism has been around for a long time and will most likely be around for a long time."

Yup, but it briefly had enough money to be a regular threat to the U.S.

"You wrote: "You seem to think that democracy is a perfect solution for the problem of tyranny. It isn't. Nazi Germany and Fascist Italy both show that."

Yea, it pretty much is. The basic difference between the United States and Nazi Germany and Fascist Italy is our longer democratic-republican tradition dating back to the founding of our nation. How long had Germany been a democracy when Hitler and the Nazis seized control?"

Hitler didn't seize control. He took it by democratic means, forming a coalition government elected in part because the voting age was lowered in 1932 to 18 years of age. The NSDAP slogan in 1932 appealed to naive sorts: "Common needs before individual needs."

"If the law is as you describe, I oppose it. It's a bad law."

This isn't a hard thing to check. For that matter, if you had read the decision that you are attacking so fiercely, you would know that I am describing the law correctly. And yes, it is a bad law, the result of democracy.

"I don't think it is, however, a violation of the Second Amendment because the Second Amendment doesn't relate to private individual gun ownership--unless the Supreme Court of the United States upholds the Parker decision on appeal."

You keep saying it--but the evidence of original intent is very clear on this. Your interpretation of the Second Amendment's meaning appears in no documents before the 20th century--while mine--that the right is individual--is confirmed in every commentary written by eminent constitutional scholars of the early Republic, all nineteenth century state supreme court decisions, and all nineteenth century U.S. Supreme Court decisions.

There is one decision of the 19th century, State v. Buzzard (Ark. 1842), that argues that the purpose of the Second Amendment was collective in nature--to maintain the power to overthrow a tyrannical government. But even that decision admits that the right was individual, even if the purpose was collective.

"Here's a challenge for you. Imagine for a moment that the Second Amendment didn't exist and you were confronted with a law like the DC anti-gun law, can you think of any constitutional argument against the DC law--again without reference to the Second Amendment (because we're pretending--just for the moment--that it doesn't exist)?"

No. The legislature is certainly capable of gross violations of human rights without running afoul of the Constitution--it just has to be creative, as it has often demonstrated its ability to be. You might want to read up on the "grandfather clauses" used to prevent blacks from voting. They were brilliantly thought out--they did not discriminate based on race, but had the effect of completely prohibiting black voting.

J. Kent McGaughy -
3/19/2007

You wrote: "That's a bold statement, and one that I do not find plausible. You can kill so many of the terrorists, and so disrupt their methods of acquiring resources that they cease to be a problem. War alone is not enough, of course. You also need to fix the underlying problem that creates that terrorism, but that would require imperialism on a scale that Americans won't accept until we start losing cities to nuclear weapons."

Allow me to clarify, here is an area of general agreement--especially the latter half of your statement about war not being enough. Yes, if you've located a terrorist haven strategic use of the military can work. My point about war creating more terrorists concerns situations like Iraq that involve large numbers of civilian casualties. I do not, however agree with your statement that "would require imperialism on a scale that Americans won't accept until we start losing cities to nuclear weapons." There are other solutions--not immediately viable because we haven't pursued them.

You wrote: "We're now engaged in a war without borders, without limits, without an end." And your basis for this claim is?"

President Bush and VP Cheney have said as much. They've indicated that we will go wherever the terrorists go; they've indicated that as long as terrorism poses a threat to the U.S. we will be at war.

Terrorism has been around for a long time and will most likely be around for a long time.

You wrote: "You seem to think that democracy is a perfect solution for the problem of tyranny. It isn't. Nazi Germany and Fascist Italy both show that."

Yea, it pretty much is. The basic difference between the United States and Nazi Germany and Fascist Italy is our longer democratic-republican tradition dating back to the founding of our nation. How long had Germany been a democracy when Hitler and the Nazis seized control?

You wrote: "I'm calling on Mr. McGaughy to deal with the question at hand: is the District of Columbia, when it denies law-abiding adults the right to have a loaded handgun at home for self-defense, violating anyone's rights? This isn't a law that prohibits keeping nuclear weapons, flamethrowers, hand grenades, RPGs, or machine guns in one's home."

If the law is as you describe, I oppose it. It's a bad law. I don't think it is, however, a violation of the Second Amendment because the Second Amendment doesn't relate to private individual gun ownership--unless the Supreme Court of the United States upholds the Parker decision on appeal.

If, however, the court overturns Parker on appeal, I certainly wouldn't oppose another go should be made against the DC law. On what grounds? Don't know. I'm not a lawyer.

Here's a challenge for you. Imagine for a moment that the Second Amendment didn't exist and you were confronted with a law like the DC anti-gun law, can you think of any constitutional argument against the DC law--again without reference to the Second Amendment (because we're pretending--just for the moment--that it doesn't exist)?

Clayton Earl Cramer -
3/19/2007

"The Parker majority view, however, asserts that Miller protects only a “weapons-based” right focusing “only on what arms are protected by the Second Amendment,” because the Supreme Court upheld Miller’s conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines, as possession of that weapon held no “reasonable relationship” to a militia."

The Supreme Court did not uphold "Miller's conviction." Miller wasn't convicted--he wasn't even tried. The trial judge in Arkansas quashed the indictment because he believed that the National Firearms Act of 1934 was contrary to the Second Amendment. The Supreme Court only directed that the trial judge should have required expert testimony as to whether the weapon in question was well relevant to militia duty. Miller died in the meantime, and was never tried.

You can read the decision U.S. v. Miller (1939) yourself, and see that Spitzer has the basic facts of the decision wrong.

Clayton Earl Cramer -
3/19/2007

Here's an analogy that might help. The First Amendment guarantees a right of free speech and freedom of the press. This is an individual right. But what are the limits of that right? Does it prohibit laws against child pornography? Does it prohibit laws that allow an injured party to sue for damages for libel or slander? Does it prohibit laws that punish treasonous speech?

The answer to all of these is no. (The exception created by the Sullivan decision is limited to public figures--and even then, was clearly wrongly decided to avoid a complex problem involving right of juries to be deciders of fact guaranteed by the Constitution.)

Now, imagine if the District of Columbia had passed a law that made it a criminal matter to publish a newspaper. Some troublemakers decide to challenge that law, and assert that the First Amendment protects an individual right.

Mr. McGaughy would, using the form of argument he is making here, deny that there is an individual right, and ask, "Do you really think that there is a right to publish child pornography, hardcore pictures of sadomasochism, hardcore pictures of adults having sex, magazines like Playboy, and romance novels?"

Yet the statute in question doesn't involve any of these items, some of which are clearly not protected, some of which clearly are (even if I find them trashy and useless--like romance novels), and some of which are in areas where decent people can have an honest disagreement.

I'm calling on Mr. McGaughy to deal with the question at hand: is the District of Columbia, when it denies law-abiding adults the right to have a loaded handgun at home for self-defense, violating anyone's rights? This isn't a law that prohibits keeping nuclear weapons, flamethrowers, hand grenades, RPGs, or machine guns in one's home.

Clayton Earl Cramer -
3/19/2007

"Read it again, it says "property" not "land." Land is property, but so is my house, car, television set, stereo, and gun. If I legally purchas a gun, it automatically becomes my property and cannot be constitutionally taken away unless I've committed some criminal act that kicks the due process provision into action."

Land is property. Big deal. Kelo authorized taking it away from the lawful owners who had committed no crime.

Your bizarre claim that guns can't be confiscated except as punishment for a crime will be welcome news to New Yorkers who legally purchased and registered guns that were prohibited from ownership in 1992, and Californians who legally purchased and registered a particular model of SKS in the early 1990s--and were then informed that they were required to turn them in, or remove them from California. If something is declared a public nuisance, it can be and often is confiscated, and the Fifth Amendment provides no protection.

"The Patriot Act made "legal" what was "illegal" 30 years ago."

Let's be specific: what actions does the PATRIOT Act make lawful that were illegal 30 years ago? Not arm-waving. Remember that many of the ACLU's ads making claims about what the PATRIOT Act does have been demonstrated to be false.

"Okay, the Patriot Act has a 5-year expiration date. So what. All that does is give you is tyranny on a 5-year plan."

You aren't paying much attention. The PATRIOT Act had a 5-year expiration date; many provisions of it were made permanent when it was renewed. This was a terrible mistake.

"Which is what will happen because we've allowed a president to declare a war that does not have an end."

The president is allowed to declare war? Odd. I thought that only Congress could do that. And they did. See the Authorization for Use of Military Force--which the courts have ruled is a declaration of war.

"You cannot wage a war and "defeat" terrorism. If you try, all you do is create more terrorism."

That's a bold statement, and one that I do not find plausible. You can kill so many of the terrorists, and so disrupt their methods of acquiring resources that they cease to be a problem. War alone is not enough, of course. You also need to fix the underlying problem that creates that terrorism, but that would require imperialism on a scale that Americans won't accept until we start losing cities to nuclear weapons.

"Lincoln, Wilson, F. D. Roosevelt, as egregious as what they did was, they acted with the confines of a officially declared war and their polices ended or were overtuned once that war ended."

And no, many of those policies and decisions were NOT overturned. The Nixon Administration (amazingly enough) asked Congress to repeal a number of emergency powers resolutions dating from the Korean War and World War II to be repealed (although adding a couple of its own). See this report.

"Since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially-proclaimed states of national emergency: In addition to the national emergency declared by President Roosevelt in 1933, there are also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970, and August 15, 1971."

"We're now engaged in a war without borders, without limits, without an end."

And your basis for this claim is?

"If you now say that we must give up some of our liberties while we're engaged in this against terrorism, then you've given up those rights."

You are trying to distract attention from your false claim about the Second Amendment. It's not going to work. Please list the specific liberties that have been taken away as a result of the War on Terror. Not, "well, this could be misused." I don't disagree that they could be misused, and if this goes on long enough, they almost certainly will be misused. All the more reason why we need to win--something that much of the left is insistent we must not do.

"Pay attention, I said that there are most likely areas of agreement and this second amendment silliness serves as a distraction preventing us from finding the common ground that may, in the end, make us all happy. Now whose living on stereotypes?"

There's nothing silly about wanting to defend yourself from criminals breaking into your home. Yet you are pulling out the RPGs scenario in response to a decision striking down a ban on law-abiding adults (including a police officer) having a handgun at home.

"The solution is to prevent it from happening in the first place by curtailing the powers of the imperial presidency and by supporting measures that make the government more accountable rather than less accountable to the voting public at large."

You seem to think that democracy is a perfect solution for the problem of tyranny. It isn't. Nazi Germany and Fascist Italy both show that.

"One reason why arming the general public with deadly force is not the solution is because my home does not afford the same security as an arsenal. If I had such weapons in my possession, the odds of someone being able to steal them and use them is significantly for terroristic or criminal acts higher.

"If I can purchase such weapons legitmately so can others who then might make them available to others via some sort of black market."

Again: this decision struck down a ban on handgun ownership, and you are pulling out strawman arguments that have nothing to do with this case.

"Your solution is a prescription for anarchy and your vision of an armed government targeting citizens becomes a self-fulfilling prophecy."

Your solution has been tried, and it led to genocide.

J. Kent McGaughy -
3/19/2007

I really don't have time for this, but this discussion board stuff can be quite addictive.

You wrote: "That same Fifth Amendment that protects us from local governments taking our land to give it to a corporation? See Kelo. Sorry, but the Fifth Amendment post-Kelo only guarantees compensation--not the right to own a gun."

Read it again, it says "property" not "land." Land is property, but so is my house, car, television set, stereo, and gun. If I legally purchas a gun, it automatically becomes my property and cannot be constitutionally taken away unless I've committed some criminal act that kicks the due process provision into action.

The Constitution does not say person can own a gun (unless you insist on misconstruing the 2nd amendment as you always do), but it doesn't say you can't. It all falls under the heading of private property, which is sacrosanct under our Constitution.

You wrote: "It has done more than the Lincoln Administration, which suspended habeas corpus? More than the Roosevelt Administration, which relocated 110,000 Americans of Japanese ancestry, the vast majority of whom were not under any suspicion? More than the Wilson Administration, which started massive racial segregation of federal government offices, and started the removal of all blacks from the Navy? More than the Cold War administrations that engaged in massive wiretapping and agent provocateur operations against the antiwar movement? More than the Clinton Administration, which tried to cover up criminal actions by BATF and the FBI that led to the deaths of 80 people at Waco? Are you serious?"

Yes. More than all the one's mentioned. If you read carefully what I wrote, I grouped the current administration in with the Cold War crowd and specifically mentioned that it crossed partisan lines. Think about it, the Watergate scandal resulted in prosecutions and jail terms for those charged and convicted of crimes. The Patriot Act made "legal" what was "illegal" 30 years ago.

Okay, the Patriot Act has a 5-year expiration date. So what. All that does is give you is tyranny on a 5-year plan. Which is what will happen because we've allowed a president to declare a war that does not have an end. You cannot wage a war and "defeat" terrorism. If you try, all you do is create more terrorism.

While, by the same token, we cannot be "defeated" by a terrorist group--they don't have to. All they have to be able to do is walk up, slap the hornets nest and let the rest take care of itself. Maybe all of the terrorists get killed in the process, but they were willing to die in the first place.

President Bush has said as much that the war against terrorism is a war without an end. If you then believe that the Patriot Act is justified as a result against the war against terror, it's going to be around for a long time. By endorsing such policies, even if it's in 5-year installments, you are inviting the nightmare scenario that you're so concerned about.

Lincoln, Wilson, F. D. Roosevelt, as egregious as what they did was, they acted with the confines of a officially declared war and their polices ended or were overtuned once that war ended. We're now engaged in a war without borders, without limits, without an end. If you now say that we must give up some of our liberties while we're engaged in this against terrorism, then you've given up those rights.

You wrote: "Perhaps instead of living on stereotypes, you should examine what positions gun rights activists take. Bob Barr, formerly Republican Congressman from Georgia, has played a rather important role with the ACLU on some of these issues--and he is also a RKBA activist."

Pay attention, I said that there are most likely areas of agreement and this second amendment silliness serves as a distraction preventing us from finding the common ground that may, in the end, make us all happy. Now whose living on stereotypes?

You wrote: "And yet you support allowing a monopoly on deadly force in the hands of the government. Are they suddenly all going to become sweetness and light when the population has been completely disarmed?"

Deadly force has always been a state monopoly in the hands of the government. If the nightmare scenario happens and the state turns its guns on us, yea it's over. Time to get Patrick Swayze and the boys and head for the hills.

The solution is not to arm the general public with weapons deadly force (and again, I'm talking about RPGs, bazookas, etc.--not handguns, shotguns, rifles, and the like.) The solution is to prevent it from happening in the first place by curtailing the powers of the imperial presidency and by supporting measures that make the government more accountable rather than less accountable to the voting public at large.

One reason why arming the general public with deadly force is not the solution is because my home does not afford the same security as an arsenal. If I had such weapons in my possession, the odds of someone being able to steal them and use them is significantly for terroristic or criminal acts higher.

If I can purchase such weapons legitmately so can others who then might make them available to others via some sort of black market.

Your solution is a prescription for anarchy and your vision of an armed government targeting citizens becomes a self-fulfilling prophecy.

Clayton Earl Cramer -
3/19/2007

The more I think about your statement, the more bizarre it gets:

"No, I do not think all men are evil. But when developing laws that affect us and our posterity, it is best to work from that assumption.

"The sentiment expressed by Smith is what we're missing today. We're passing laws taday and the potential for abuse is huge. What about when the threat either dimenishes or disappears? The laws will still be on the books."

And yet you support allowing a monopoly on deadly force in the hands of the government. Are they suddenly all going to become sweetness and light when the population has been completely disarmed?

Clayton Earl Cramer -
3/19/2007

"My central point has been to challenge individuals who misconstrue the 2nd amendment asserting that it pertains to individual gun ownership and that it does guarantee not only the right to own a hand gun and/or shotgun, but military grade weapons--I've heard Wayne LaPierre say as much. Such tripe is patently absurd."

This is also the position that the Supreme Court took in U.S. v. Miller (1939) and the fairly atypical 19th century state supreme court decisions it cited--that only weapons appropriate to militia use are Constitutionally protected. These are also decisions that gun control advocates used to take all the time--before they decided that they wanted to ban not only handguns, but also rifles.

"I am not, however, in anyway suggesting that the Constitution does not protect an individual's right to own a gun, but look to the fifth amendment for that protection not the second."

That same Fifth Amendment that protects us from local governments taking our land to give it to a corporation? See Kelo. Sorry, but the Fifth Amendment post-Kelo only guarantees compensation--not the right to own a gun.

"Violent response to acts of injustice invariably invite violent reprisals. Your view that individuals should be armed to protect and defend themselves from an abusive government relates to such extreme and rare scenarios, yet you and other 2nd amendment advocates act as this is our first and only line of defense."

First and only line of defense? This is utterly false. There's a cute, rather bumper stickerish statement that a lot of gun rights activists use that captures the sequence perfectly, and destroys your claim: "We preserve our liberties with four boxes: soap, ballot, jury, and cartridge." Armed revolt is the last line of defense against tyranny, because it is so tremendously dangerous. See this article, "Rights and Revolution," that I wrote for Shotgun News in 2002.

"Rather than focusing on the second amendment, if you are truly concerned about protecting American freedom--you should worry more about the fourth, fitfh, and sixth amendments."

Perhaps instead of living on stereotypes, you should examine what positions gun rights activists take. Bob Barr, formerly Republican Congressman from Georgia, has played a rather important role with the ACLU on some of these issues--and he is also a RKBA activist.

"No, I do not think all men are evil. But when developing laws that affect us and our posterity, it is best to work from that assumption.

"The sentiment expressed by Smith is what we're missing today. We're passing laws taday and the potential for abuse is huge. What about when the threat either dimenishes or disappears? The laws will still be on the books."

That's part of why the PATRIOT Act had a five year expiration period--and I wrote letters to my Congresscritters suggesting that instead of making it permanent, it should be only renewed for another five years. It is also the reason that we are better off to win the War on Terror, and do so quickly, rather than allowing it to go on indefinitely, as the ACLU seems intent on doing.

"You are the kind of person who clings so firmly to the 2nd amendment as the last, best hope of American freedom, yet at the same time you applaud the policies of an administration that has done more to threaten American freedom than any leader in this nation's history. It boggles the mind."

It has done more than the Lincoln Administration, which suspended habeas corpus? More than the Roosevelt Administration, which relocated 110,000 Americans of Japanese ancestry, the vast majority of whom were not under any suspicion? More than the Wilson Administration, which started massive racial segregation of federal government offices, and started the removal of all blacks from the Navy? More than the Cold War administrations that engaged in massive wiretapping and agent provocateur operations against the antiwar movement? More than the Clinton Administration, which tried to cover up criminal actions by BATF and the FBI that led to the deaths of 80 people at Waco? Are you serious?

I agree that Padilla should have been tried in civilian courts. But a great deal of the rest of your claims are simply false. Call pattern analysis is not wiretapping, and the Bush Administration's actions in the War on Terror are far less intrusive than those of the Roosevelt Administration during World War II. The German saboteurs that were tried by military commission? They weren't captured on foreign battlefields; they were captured in the U.S.

J. Kent McGaughy -
3/19/2007

Spring Break is now over, and I have to get back to work, but just to wrap up:

My central point has been to challenge individuals who misconstrue the 2nd amendment asserting that it pertains to individual gun ownership and that it does guarantee not only the right to own a hand gun and/or shotgun, but military grade weapons--I've heard Wayne LaPierre say as much. Such tripe is patently absurd.

I am not, however, in anyway suggesting that the Constitution does not protect an individual's right to own a gun, but look to the fifth amendment for that protection not the second.

Violent response to acts of injustice invariably invite violent reprisals. Your view that individuals should be armed to protect and defend themselves from an abusive government relates to such extreme and rare scenarios, yet you and other 2nd amendment advocates act as this is our first and only line of defense.

Yes, perhaps it is in the realm of possibility that a dictatorship could emerge in this country who could impose such restrictions that armed resistance may be necessary. The solution, however, is not to make we arm ouselves to respond to such an event, the solution is to prevent it from happening in the first place--that's what our constitutional system is all about.

Since the end of World War II, we have seen exponential growth of presidential power, a phenomenon that has crossed partisan lines. Now, we have leaders who engage in fear-mongering in order to justify further expansion of authority. We live in a world now that tolerates warrantless searches, wire tapping, and such all in the name of protecting us from our "enemies."

Rather than focusing on the second amendment, if you are truly concerned about protecting American freedom--you should worry more about the fourth, fitfh, and sixth amendments.

I recall an exchange during the New York Ratifying convention in 1788, I believe between Melancton Smith and Alexander Hamilton (I think). Hamilton asked Smith in an exasperated way (I'm paraphrasing, I do not have the exact words in front of me):

Are you saying that all men are evil?

Smith replied:

No, I do not think all men are evil. But when developing laws that affect us and our posterity, it is best to work from that assumption.

The sentiment expressed by Smith is what we're missing today. We're passing laws taday and the potential for abuse is huge. What about when the threat either dimenishes or disappears? The laws will still be on the books.

We could very well be living through a time that future historians may refer to as the period when an American dictatorship emgerged.

You are the kind of person who clings so firmly to the 2nd amendment as the last, best hope of American freedom, yet at the same time you applaud the policies of an administration that has done more to threaten American freedom than any leader in this nation's history. It boggles the mind.

What's so frustrating is that while we vehemently disagree about the nature and importance of the second amendment, there are (I suspect) areas of agreement we both share. But as long as you insist of focusing and misconstruing the second amendment, we'll never get to our points of agreement.

This is where I must end. As time permits, I will read your book, ARMED AMERICA, and as (or if) opportunities present I'll let you know what I think (should you care).

Clayton Earl Cramer -
3/19/2007

You keep talking about RPGs, machine guns, and bazookas--even though the DC law in question involves handguns, shotguns, and rifles and self-defense. Why?

You draw the analogy to a car. I would love for guns to be as loosely regulated as cars.

You don't need a license to buy a car. You need one to drive it on public streets, but I can buy a car without showing a license, and I can transport it private property and drive it all I want.

I don't need to pass a background check to buy a car, nor is there a waiting period to buy a car.

My Idaho driver's license is recognized in all 49 other states and many other countries. But even though I have a concealed handgun license from Idaho, Washington, Oregon, Florida, Connecticut, and Maine, there are a number of states where I can't lawfully carry a gun for self-defense--and mostly, they are places where I have the most reason to do so (California, New York, DC).

I can buy a car in any state, and bring it home. I can't do that with a handgun!

In some states, guns that can hold more than 15 rounds are completely unlawful--even though there is nothing intrinsic about that capacity that makes such a gun criminal in nature. On the other hand, I drive a car whose top speed is above 160 mph--and I can drive it anywhere in America, no hassles. (The Corvette as "assault vehicle!")

There are people out there who have stated that their goal is to completely prohibit private gun ownership. For the most part, people who want to ban car ownership are lunatics.

One other rather dramatic difference: cars are useful and nice devices to have, but they aren't in any sense necessary tools for overthrowing a tyrannical government. The Framers of our Constitution knew better, and that's part of why they put a right to keep and bear arms in the Constitution. See Federalist 10, if there's any doubt about this.

When I was little, I would go to the Baskin-Robbins on Wilshire Blvd. in Santa Monica to get my ice cream cones. One of the women who worked behind the counter had a tattoo on her arm. It wasn't very fashionable; just a letter and some numbers.

Like a valuable piece of machinery, she had been given a serial number. Fortunately, her value as a "working asset" had exceeded her "scrap value" and she survived World War II--instead of being "parted out" for her hair, the gold in her dental work, and her skin (which the wife of one camp official made into such elegant lampshades).

There's a lesson there. There are times that peaceful political processes fail. The 20th century is filled with such examples: in the Soviet Union; in Nazi-occupied Europe; in Saddam Hussein's Iraq; in Pol Pot's Cambodia; in Turkey during World War I. Never again.

Clayton Earl Cramer -
3/19/2007

It is preferable to work through peaceful processes--but sometimes that's not an option. In the case of lynching, by the time peaceful processes had succeeded, thousands of blacks had been lynched. Even that really doesn't capture the full horror of what happened. Blacks weren't just hung by the neck until dead; they were often castrated and burned alive. Sorry, but all your talk of "peaceful processes" is completely absurd when confronting evil that large.

You should study Reconstruction. There were many occasions when only the willingness of freedmen and a few white sympathizers to take up arms prevented much greater bloodshed and oppression. The Colfax Massacre that led to U.S. v. Cruikshank (1876) is a reminder that relying on legal processes did not work!

Even more recently, the clash that took place in Robeson County, North Carolina in 1958 between the KKK and the Lumbee Indians is a reminder that defending your rights at the point of a gun is sometimes more effective than working through political processes. By the time that confrontation was over, the KKK was begging the sheriff for protection!

A friend of mine, Don Kates, was a young attorney who went South as part of Freedom Summer. He has described to me how when he and other civil rights activists marched through many of these Georgia towns, using the peaceful processes you think will solve these problems, they were regularly attacked and injured by white racists--and law enforcement refused to take any action. This is no surprise; at the time, Klan dues were usually paid at the nearest sheriff's substation in many parts of the Deep South.

One day, one of Don's black compatriots responded to a violent attack by drawing a handgun. He didn't fire it, but it rapidly caused the racists to back away. And lo and behold! The next day, the governor ordered the state police to provide security. The prospect of their precious racist hooligans getting hurt finally made them concerned about violence!

Labor unions engaged in considerable violence and threats throughout the Gilded Age, and even into the 1920s precisely because there was no way for them to get the political process to look out for their interests, and because state governments used the National Guard in ways that were clearly unlawful. I'm no fan of labor unions, but it is impossible read much of the period without having some sympathy for them and their goals. Read something of the background of Presser v. Illinois (1886). Or read any of the contemporary accounts of the railway strikes of 1877.

The Japanese-Americans, without question, would have been far worse off if they had fought back. It would have confirmed the worst fears of those who suspected them of divided loyalties. But those who were U.S. citizens would have been morally in the right to demand--even at gunpoint--that their rights be respected. It would not have been prudent, however.

I should point out that unlike the situation of lynching and much of the violence directed against labor unions, Japanese-Americans were primarily injured economically by the internment; their lives were not at risk, unlike the freedmen and the labor unionists.

J. Kent McGaughy -
3/19/2007

Good examples. Now tell me, which do you think is the preferable course of action in each of these instances (choose A or B):

Black Codes:

A. Having African Americans arm themselves, then shooting and killing the politicians who were responsible for the measures; or

B. Working through political channels in a peaceful manner through the constitutional process and having the 14th amendment added to the Constitution.

Lynching:

A. Having those who are threatened with lynching arm themselves, then shoot and kill their oppressors; or

B. Having lynching to be declared as murder, then later passing the appropriate civil rights legislation to assure that lynching is not only murder, but a violation of one's civil rights as well.

Internment of Japanese-Americans during World War II:

A. Having Japanese Americans arm themselves and shoot those who came to arrest them and put them in the camps; or

B. Working through the judicial process (i.e. Koramatsu v. United States)as part of an attempt to correct the injustice and if that fails (which it did) continue to work peacefully until finally the federal government apologizes for the injustice and pays reparations to the families of those interred.

Busting Labor Unions:

A. Laborers arming themselves, shooting at strike breakers--both Pinkertons and State National Guard (which they did); blowing up mines and trains (which they did); or

B. Working through legitimate channels and through the political process until a recognition of labor's right to organize, its right to strike, and collective bargaining is attained.

What do you think? Which has proven to be on the side of history? A or B?

J. Kent McGaughy -
3/19/2007

How do to get the idea that simply because I argue that the 2nd amendment has nothing to do with private gun ownership that I want to "disarm America."

Read my posts, I've stated plainly that gun ownership protection in found in the 5th amendment, not the 2nd. That's why it's hypocritical on your part to be so cavalier about how the 5th amendment is being gutted, yet you profess to be so concerned about American freedom, including the right of a citizen to own a gun.

Gun ownership, just like all property, ownership is subject to rules and restrictions. It is not appropriate to allow a private citizen to own a RPG launcher, machine guns, bazookas, tanks, etc. If you want to play with those toys, join the military.

If you own a gun and engage in criminal activity using that gun, your ability to legally own a gun can and should be restricted.

You have to have a license to operate a car; you have to register your car; when one private individual sells his car to another individual you have to go to the court house and transfer title. What's the harm in having these same provisions for guns?

Clayton Earl Cramer -
3/18/2007

"Can you cite any examples when our government has engaged in "armed" oppression against the people of the United States in which the individuals involved had not engaged in some criminal activity prior to the government's action?"

Black Codes. Lynchings. Internment of the Japanese-Americans during World War II. The long history of state governments using the National Guard to harass, threaten, and kill labor unionists. My book For the Defense of Themselves and the State (Praeger Press, 1994) has many examples.

Clayton Earl Cramer -
3/18/2007

Short answer: fines for failure to show up for musters or when called into service. In practice, the militia declined rapidly in the early Republic as individualism replaced civic republicanism as the operative social principle.

Clayton Earl Cramer -
3/18/2007

1. The Second Amendment's history is somewhat complex, but the first part of it only expresses a general preference for the militia--it is far less specific or restrictive than many of the requests that were made by the states for something to limit the authority of Congress to maintain a standing army.

2. The second clause--"right of the people to keep and bear arms" reflected both a belief that widespread gun ownership was necessary to maintain a militia, and an assumption that this was a right of all free persons. See Blackstone's Commentaries on the Laws of England concerning this.

3. Your example about restricting one's license to drive because of driving related actions is spot on, and there has never been any serious question that the right to keep and bear arms may be restricted based on one's individual actions. Convicted felons lose the right to own a gun--and the only argument that you will ever hear about this is concerning people convicted of non-violent felonies (such as turning back a car odometer). There's also no dispute that a person with a history of mental illness or violence can lose the right own or carry a gun. I don't know any gun rights activist who would say otherwise. The reason that there is a fight about this is that gun control advocates seek to prohibit law-abiding adults without any criminal or mental illness history from owning guns.

4. "I would like to ask you the question, do you honestly think its logical to allow a private citizen to own military grade weapons such as rocket-propelled grenade launchers, machine guns, and such weapons that were designed to kill as many people as possible as quickly as possible? (Please correct me if I'm mistaking the NRA position that the 2nd Amendment guarantees an individual's right to own such weapons)"

The weapons that the Second Amendment was intended to protect were man-carried small arms--those that might be used to deal with a tyrannical government. You can make a case that certain categories of modern weapons are so dramatically more powerful than the weapons of 1789 that they aren't in the same category, such as nuclear or chemical weapons. But I can show you advertisements from the 1780s in Philadelphia offering "hand grenadoes" for sale--probably comparable to a modern pipe bomb in destructiveness. Whether an RPG is similar to any man-carried 1789 weapon is a legitimate question.

By the way, you can legally own machine guns in most American states. There is a licensing procedure, but the major obstacle to buying one turns out not to be federal law, but state law. Idaho, for example, has no machine gun regulation or licensing. Oddly enough, legally registered automatic weapons aren't much of a crime problem in America.

In general, the focus needs to be not on the type of the weapon, but the type of person holding the weapon. Which is more a public safety hazard? The law-abiding adult with no history of mental illness who has a machine gun, or the convicted felon with a .22 rifle?

"In this day and age do you honestly think this is a tenable position. I'm not talking about guns for self defense, or hunting rifles, shotguns, etc."

But the law in DC wasn't about regulating machine guns, RPGs, and such, nor was it about preventing criminals from having guns. It was specifically about prohibiting law-abiding adults from having handguns in their homes for self-defense. I would be a lot more impressed with the argument that "we just want reasonable gun control" if gun control advocates didn't continue passing laws that made it a criminal offense for a law-abiding adult to own a gun for self-defense.

Rob Willis -
3/18/2007

Simply this: All Western nations are "nations of laws" after a fashion, but good law and bad law is like beauty - in the eye of the beholder. Many who hold your opinion would have long since disarmed the public, and you know this, because a disarmed public is a hostage public. Ask the German Jews about this sometime. Ask the American Indian Nation. The historical list goes on and on of those peoples who have had the ability to resist draconian "laws" striped away, and almost always because some slick convinced them that the "law" could never be twisted in their disfavor.

How might America look today had the Founders outlawed private gun ownership? Very different, and not better, IMHO. Thank goodness for the wary masses, who hold liberty and logic above the whims of a hung-over judge. They have managed to keep this country free from the inevitable tyrant-wannabe.

J. Kent McGaughy -
3/18/2007

On your last point, no. Enligten me and explain how.

Rob Willis -
3/18/2007

"How do you feel about the Patriot Act gutting elements of the 5th amendment? Warrantless phone tapping? The issuance of secret search warrants? The dismissal of government prosecutors for not prosecuting the administration's political enemies, while prosecuting their political friends?"

The first three don't bother me one bit. The forth is an absurd charge on your part.

If so, I'd be curious. If not, then you're talking about a "phantom menace," which interestingly enough is a tool often used by oppressors to justify their oppression.

"Admittedly if you focus on the pre-1789 period you could find some examples regarding the British against the American colonists. But, as you must know, the framers established a constitutional system based on the rule of law to prevent such abuses from ocurring again in the future. What about since 1789?"

Did it occur to you that you just helped prove my argument?

J. Kent McGaughy -
3/18/2007

Can you cite any examples when our government has engaged in "armed" oppression against the people of the United States in which the individuals involved had not engaged in some criminal activity prior to the government's action?

If so, I'd be curious. If not, then you're talking about a "phantom menace," which interestingly enough is a tool often used by oppressors to justify their oppression.

Admittedly if you focus on the pre-1789 period you could find some examples regarding the British against the American colonists. But, as you must know, the framers established a constitutional system based on the rule of law to prevent such abuses from ocurring again in the future. What about since 1789?

I find it ironic that you go to such lengths to protect the skewed view of the 2nd amendment as a tool protecting my right to own a RPG launcher (in case my congressional representative gets out of line). Thank you (I guess?)

How do you feel about the Patriot Act gutting elements of the 5th amendment? Warrantless phone tapping? The issuance of secret search warrants? The dismissal of government prosecutors for not prosecuting the administration's political enemies, while prosecuting their political friends?

Do you get as worked up over these? Or do you take comfort in rationalizations like "freedom isn't free" to justify and excuse such abuses.

Of course, all of this done in the name of protecting our "freedom" (!?!) from our enemies who hate democracy lurking out there in the darkness, waiting to kill, maim, and destroy.

Our politicians are trying to make us live in fear of our enemies to such an extent they can strip away our freedom. To my mind this whole debate over the 2nd amendment is a distraction; while so many are focused on our "right to bear arms," other much more critical rights are being stripped away as we speak.

You're right, our politicians should be afraid of the common people; but they should fear our votes, not our guns.

Rob Willis -
3/18/2007

You are a romantic. And, you seek to frame the argument from an inverted view. The right of citizens to RESIST armed oppression is the point, not the right to engage in mob rule. What is sad, is that you know this, but refuse delivery.

The end game here is: Politicians and policy makers SHOULD be afraid of the common people. Our system is designed that way. Enjoy its benefits.

J. Kent McGaughy -
3/18/2007

"This argument has long lost its luster, but I am always curious as an historian: Why are certain folks so terrified of average citizens having the means to stand firm in the face of oppression?"

The Constitution provides numerous ways to stand against oppression. We have frequent elections; and we have provisions for impeachment and removal from office.

What I find disturbing is the notion that so many 2nd Amendment advocates assert is that our best (only?) defense against bad/oppressive government is to arm ourselves and take the fight to the streets. That's anarchy.

Another variable to keep in mind: who defines "oppression"?

There are some people in this country who believe that examples of government oppression included requiring them to have a drivers license, and requiring them to have license plates on their vehicles. They believe that the government's insistance on gun registration is oppression. They claim that these are merely tools that are used by the government to monitor their movements and activities and infringe upon their freedom.

What do you think? Should they arm ourselves, take the fight into the streets? Maybe blow up a federal building in Oklahoma City? Oh, wait a minute, someone did that.

There are some people who live outside the United States who believe because our government supports and protects a feudalistic monarchy that rules their country in dictatorial fashion that the U.S. is responsible for the oppression of they people who live in their country.

What do you think? Should they arm themselves and attack what they perceive to be the source, the cause of the government opression that effects them? Oh, wait a minute, they did.

There are some who think that government oppression entails an administration that embraces policies such as gutting the fifth amendment, sponsoring a set of judicial proceedures that allow for the issuance of secret search warrants, tapping phones, firing federal prosecutors for failing to prosecute the government's political opponents, etc.

What do you think? Should we arm ourselves? Take it into the streets?

The obvious answer is of course not. Think about it. Those individuals who "fight" government oppression in the manner you suggest, we generally call them as "terrorists," and we do so for a reason--because they are. We regard them as criminals, and we do so for a reason--because they are.

More often than not, acts of terrorism only seem to invite the government to clamp down; to impose more restrictions; dare I say, become more oppressive.

We have the many non-violent means to stand firm against oppression. What terrifies me are 2nd Amendment fanatics who believe we have only one means: arming ourselves with weapons and taking the fight into the streets. If we take that route, then that means our constitutional system as failed and little else matters.

Jason Blake Keuter -
3/18/2007

The general argument favoring gun control is an argument based on loose construction of the constitution. Regarding the second amendment, people who wish to abrogate the right in it argue that the historical context in which that right was needed (eminent British invasion) has long passed and therefore the purpose of the amendment is no longer valid.

This line of reasoning is sort of fair, in so far as the rights enshrined in the Bill of Rights are there to protect liberties denied by the British in the period leading up to the Revolutionary War. Since the Constitution was seen as leading to a centralization of power, the Bill of Rights was the mechanism to assure that such a centralized power wouldn't deny the rights the last centralized power did. The right to trial by jury of your peers, for example, is a reaction to the vice admiralty courts in Nova Scotia.

In fact, the authors of the Bill of Rights recognized that they were limiting themselves to what was most familiar - namely the abrogation of rights by the British governmnet. They thus added the 9th amendment as a reminder that other rights couldn't be abrogated just because the amendments listed specific rights. In other words, the first 8 amendments aren't the only rights people have.

This reflects the British origins of the Bill of Rights, which finds them as much in custom as in Constitutions. Most of the rights the colonists had felt were violated were rights they only understood explicitly once they were denied.

I can't provide you quotes from "prominent" figures because I don't know what your riteria for prominent is. If, however, you provide me with the names of five prominent gun control figures, I will do a web searcch and find their arguments, and I'll bet you $500 that at least 3 of the 5 make the argument I mentioned above.

Rob Willis -
3/18/2007

Mr. Cramer, I missed part of your above post before replying below, forgove my duplication. I look forward to your book, but I am still curious whether you found evidence that the government could FORCE militia members into contracted combat service, which I doubt. This is an important argument concerning the rights of the individual.

J. Kent McGaughy -
3/17/2007

One of the main points I was making while disputing that the 2nd amendment is about individual gun ownership, it's about preserving the state militia from a perceived threat (note I said perceived threat, whether real or imagined is another issue) from the new national government established by the Constitution.

The Constitution as well as the Bill of Rights does, however, protect an individual's right to own a gun under the fifth amendment's guarantee of property.

Gun ownership, like other forms of ownership can be regulated and controlled. Just as my example with an automobile, if charged and convicted of numerous DWI's, you will lose your license to drive, therefore anytime afterwards you get behind the wheel of a car you're committing a crime.

If you own a gun and use it while engaging in criminal activity, and are charged and convicted of a specific crime, you will and should lose your right to legally own a gun. Is really such an unusual concept?

Mr. Cramer I've read numerous posts on a variety listservs we share memberships and acknowledge your expertise on militia laws and such. I would like to ask you the question, do you honestly think its logical to allow a private citizen to own military grade weapons such as rocket-propelled grenade launchers, machine guns, and such weapons that were designed to kill as many people as possible as quickly as possible? (Please correct me if I'm mistaking the NRA position that the 2nd Amendment guarantees an individual's right to own such weapons)

In this day and age do you honestly think this is a tenable position. I'm not talking about guns for self defense, or hunting rifles, shotguns, etc.

Rob Willis -
3/17/2007

In what time period, sir? I am not speaking of the colonial/post colonial century, I am speaking of the broader sweep. And, I would enjoy hearing how the new American states were able to force militia membership. This is a gap in my scholarship. Please illuminate.

Clayton Earl Cramer -
3/17/2007

"As also pointed out, militia members were under NO obligation to contract with the state or federal government for military service. They could sign or resign as they saw fit, for the most part. This again proves the power of the INDIVIDUAL to serve on his terms."

Uh, no. Membership in the militia was mandatory. My new book Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007) examines this in detail.

Rob Willis -
3/17/2007

"This isn't rocket science folks. The 2nd amendment never has had anything to do with an individual's right to own a gun."

Goodness, you are certain of your superior knowledge, sir. Forgive our pathetic attempt to provide evidence to that your view may be incorrect.

Let me revisit the important bits: The idea of the civil population owning weapons was to provide a check against top-line military organizations (our own soldiers or those of a foreign power) on equal terms. In 1793, a rifled musket WAS an assualt rifle; spears and slingshots are also arms, but no reasonable person would suggest that these were the type of arms referenced or encouraged. In fact, several private militia units were artillery units before the Civil War, and had their own cannon.

As I mentioned earlier, militias were PRIVATE organizations who existed with the blessings of state and federal governments, and the provision for organization, arms, and discipline was a practical military clause, for good reason. Nine different weapons on a firing line, carried by a "company" of 15 men, who had been drilled from Byzantine field manuals, were worthless to everyone, especially a governmental entity in crisis.

As also pointed out, militia members were under NO obligation to contract with the state or federal government for military service. They could sign or resign as they saw fit, for the most part. This again proves the power of the INDIVIDUAL to serve on his terms.

This argument has long lost its luster, but I am always curious as an historian: Why are certain folks so terrified of average citizens having the means to stand firm in the face of oppression?

Clayton Earl Cramer -
3/17/2007

"Anyone who has the least bit of knowledge about the framers' of the Constitution reaction to events such as Shays's Rebellion (1786-1787) or the Whiskey Rebellion (1794) would know immediately that any suggestion the framers believed in an individual's right to own an assault rifle is patently absurd."

That's why they passed the Militia Act of 1792--which required every free white male from 18 to 45 to own the standard military long gun of the time.

To limit & qualify powr. by exceptg. from grant cases in wch. it shall not be exercised or ed. in a particular manner.

to guard

1. vs. Executive & in Engld. &c--
2. Legislative as in Sts--
3. the majority of the people
-----
out to point to greatest danger which in Rep. is Prerogative of majority---

His speech of June 8, 1789, is explicit that the protections of the Bill Rights "point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority."

Madison's own writings make it clear that widespread gun ownership was a benefit in fighting tyranny in Federalist 46, where he observed that along with many other protections contained in the new Constitution, "Besides the advantages of being armed, which the Americans possess over the people of almost every other nation..."

That's why every commentary from the early Republic period states that the Second Amendment protects an individual right. St. George Tucker, Chief Justice of the Virginia Supreme Court, whose commentaries are held in especially high regard by the Supreme Court for Constitutional interpretation, prepared an 1803 American edition of Blackstone's Commentaries and observes, with respect to Blackstone's remarks about the right to keep and bear arms, "And this without any qualification as to their condition or degree, as is the case in the British government."

William Rawle's 1829 A View of the Constitution observes that while the first clause of the Second Amendment provides for state governments to regulate the militia, that the second clause is quite severe in its effect:

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both....

And the Georgia Supreme Court did exactly that in Nunn v. State (Ga. 1846), striking down a state ban on sales of concealable handguns for violating the Second Amendment.

There is not a single example of the "right of the states to form militias" decision or legal commentary anywhere in America before the 20th century.

Ben James Thompson -
3/17/2007

Though the Constitution explicitly left only the power of selecting officers and training the militias to the states, Madison, at the Virginia Ratification Convention, denied that the right to provide for arming the militia was exclusive to the federal government (in spite of the Constitution's words).

Both Madison and Marshall declared it "absurd" that the states would not retain such a power. Henry vehemently disagreed.

Mason (at the ratification convention) also objected that the document coming out of Philadelphia would allow for a select militia (as opposed to the general militia then in existence).

There were, therefore, any number of objections the Second was intended to address and one is hard-pressed to make a case for any one over the others (or to the exclusion of others) if each has certain plausibility.

Just which of those concerns, and which methods they used to address them, are assumed, affects the interpretation one chooses.

If bearing arms is military service (which goes against Parker), the Second gives no comfort to the rebels of the Whiskey Rebellion. Rather the Second then appears as a guarantee against a select militia.

J. Kent McGaughy -
3/17/2007

As usual when the topic of gun control comes up, commentators go off on tangents that bear little relation to the issue at hand.

Spitzer's key point in his article is "In carving out an “individual” right, the case of Parker v. District of Columbia proves that bad history makes for bad law." Except for the one posting where the author asserts James Madison believed in the right individual gun ownership and argued that is what the 2nd amendment is all about.

This is bad history. Anyone who has the least bit of knowledge about the framers' of the Constitution reaction to events such as Shays's Rebellion (1786-1787) or the Whiskey Rebellion (1794) would know immediately that any suggestion the framers believed in an individual's right to own an assault rifle is patently absurd.

When seeking the origins of the 2nd Amendment, one only needs to look at the Constitution itself. Consider the following passages from Article I, sec. 8:

1. Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

2. Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

A careful reading of these two clauses reveal that the only power left to the states regarding the militia was the power to appoint officers and the power to train the militias "according to the discipline prescribed by Congress." Under these provisions (prior to the second amendment), the national government could effectively do away with the state militias potentially leaving the states defenseless against a hostile, all-powerful national government that now had the power to raise armies and navies independently from the states.

Several states took exception to this and to correct the matter to make sure the state militias would be preserved under the new Constitution.

This isn't rocket science folks. The 2nd amendment never has had anything to do with an individual's right to own a gun.

Now, if you are interested in what the Constitution has to say about individual gun ownership, skip the 2nd amendment and look at the 5th amendment where it states that:

"No person shall be...deprived of life, liberty, or PROPERTY [my emphasis], without due process of law; nor shall private property be taken for public use, without just compensation."

Within this amendment an individual's right to own a gun is protected. But the right to property has never been absolute--the due process element always applies. If you commit a crime and are convicted of that crime, your property can be taken from you.

If you rack up a long list of DWI's, get charged and convicted, you're going to lose your ability to (legally) own a car;

Guns fall under this same catagory. If you own a gun and you remain a law abiding citizen, then no governmental authority can take your gun away unless its "for public use" with "just compensation."

What I find so ironic (as well as a little spooky), is that there are so many Americans who go nuts about "protecting" the 2nd amendment and fall for the NRA's propaganda hook, line, and sinker, while at the same time they either ignore or applaud the current government's efforts to gut the 5th amendmment.

It makes no sense, but it is a consequence of so many Americans being ignorant of our history.

Clayton Earl Cramer -
3/17/2007

"The point of his study that violent crime and gun violence went down due to implementation of concealed carry laws. Violent crime and gun violence went down over the entire country mostly due to factors not involving gun laws at all. The economy was improving and more police were put on the streets. He then takes his numbers without sufficient controls and imputes the change to gun laws."

Showing that you haven't read Lott & Mustard's paper. They showed that the violent crime rates fell faster in the shall-issue states, coincident with adoption of the new laws, than in the non-shall-issue states.

"Laws against anything will not be completely effective. There are laws against murder, theft, speeding and any number of other things yet people continue to do them, especially criminals. Does this mean we shouldn't have these laws?"

Showing that you aren't even reading what I am saying. I said that I support background check laws.

"Your study does not support your parenthetical statement."

No it doesn't. We have had a few incidents where waiting periods have caused victims to be murdered, because they were waiting for a gun delay to finish, and they were murdered in the meantime. A friend of mine in California was in a situation of having to wait for the 15 days to expire, after he was informed (as required by law) that a mental patient who had been threatening his life was about to released.

"The study shows no significant difference between the CA and national averages with lengthening the waiting period."

You mean it showed that it did nothing at all. The differences between CA and national murder rates stayed about the same, even though California kept lengthening its waiting period, while there was none present nationally.
Gee, it didn't work. What a strong argument for a law!

"Yet your other study showed a significant reduction in suicide rates for the elderly. This seems to be a net overall benefit for a minor inconvenience."

"...although liberals believe that suicide a right that the government shouldn't block"

"If someones teenager is willing to take a drill to your gun lock to show off to his/her friends they have some problems you need to work on with their child. If the gun lock is destroyed at least they know what is happening."

Very true. But again, the accidental gun death rate is extremely small, and about half of that is hunting accidents, and many of the others aren't going to be stopped by gun locks. Connecticut passed such a law in the early 1980s--and was unable to show any reduction in accidental deaths because of it.

California passed such a law when I was living there--and with a year or two, there was at least one mass murder caused by it. In the Central Valley, a 14 year old was unable to get to a gun when a crazy person came into her home with a axe and started chopping up her younger siblings.

Every law has consequences. Sometimes good. Sometimes bad. Gun lock laws attempt to solve a problem which is actually pretty rare.

Clayton Earl Cramer -
3/17/2007

"If violent crime in general and gun crime in particular are going down nationally (as they were during the time of the study) it matters to the study. If gun crime goes down in areas with tightened or loosened gun control it only matters statistically if it moves statistically significantly more than the background (here the national average for all states or possibly states without change). It must be controlled for."

And Lott & Mustard's study did that. It compared the reductions relative to places that did not implement such laws.

You say that all of these states adopted these new laws, and these are bad policies. Why are they bad policies? Even if Lott & Mustard's study is wrong--and there was no improvement--the expected crises did not develop. We know that a lot of people have avoided rape and murder because of these new laws because permitholders are using their guns to defend themselves. My Civilian Gun Self-Defense Blog links to news accounts around the U.S. of civilians defending themselves with guns--and we have such news stories just about every day, often multiple examples a day. More than occasionally they are permitholders who are attacked or threatened while they are outside their homes.

John Charles Crocker -
3/17/2007

The point of his study that violent crime and gun violence went down due to implementation of concealed carry laws. Violent crime and gun violence went down over the entire country mostly due to factors not involving gun laws at all. The economy was improving and more police were put on the streets. He then takes his numbers without sufficient controls and imputes the change to gun laws.

"...although liberals believe that suicide a right that the government shouldn't block"
That is an absurd contention to make.

"I don't have much confidence that background checks are going to be completely effective."
Laws against anything will not be completely effective. There are laws against murder, theft, speeding and any number of other things yet people continue to do them, especially criminals. Does this mean we shouldn't have these laws?

"Waiting periods? They have no established evidence of success. (They do, however, sometimes cause a person with an urgent need for a gun for self-defense to get killed.)"
Your study does not support your parenthetical statement. The study shows no significant difference between the CA and national averages with lengthening the waiting period. Yet your other study showed a significant reduction in suicide rates for the elderly. This seems to be a net overall benefit for a minor inconvenience.

"Gun lock laws? Completely ineffective. Most of the gun accident problem in the home involves teenagers showing off--and gun locks really only keep very small children (the ones who don't know where the drill is) away."
If someones teenager is willing to take a drill to your gun lock to show off to his/her friends they have some problems you need to work on with their child. If the gun lock is destroyed at least they know what is happening.

John Charles Crocker -
3/17/2007

"You claim that these studies have failed to account for confounding factors, and list "changes in national rates, number of police on the streets, economy etc." But as this review of the claims points out, Lott & Mustard's study included income data as well."
It include one among many confounding factors.

If violent crime in general and gun crime in particular are going down nationally (as they were during the time of the study) it matters to the study. If gun crime goes down in areas with tightened or loosened gun control it only matters statistically if it moves statistically significantly more than the background (here the national average for all states or possibly states without change). It must be controlled for.

Your final point is irrelevant. Many bad policies continue. This is not to say that all of these policies are bad merely that there continuation is weak evidence in support of them.

Christopher Michael Alfano -
3/16/2007

Tahnk you for printing out these documents. It seems people who argue for or against certain idea, ie gun rights, abortion, and so on seem to forget their history.Local militia is a very small part of the 2nd admendment,I believe. I think that it has alot to do with self preservation, from not only the criminal element in society, but maybe with a pushy ,overbearing government. Just a thought. Thanks for the quotes.

Clayton Earl Cramer -
3/16/2007

"For a majority of the population have gun control laws gotten more or less strict over that period?" Less strict. A fair chunk of the population now lives in states where by law, most adults who apply for a concealed handgun license will get it.

By the way, the < ahref="http://www.claytoncramer.com/DroppingCrime.PDF">decline in violence (not just gun violence) starts in 1991. In the period 1991 to 1998, the gun murder rate fell 28.3%, but the non-gun murder rate fell 46.1%. If gun control made the difference--not some other social change--wouldn't you expect the gun murder rate to fall faster than the non-gun murder rate?

I'm not the only person to notice this. Even prominent antigun criminologists have admitted that the Brady Law had little effect on crime. See Jens Ludwig and Philip J. Cook, “Homicide and Suicide Rates Associated With
Implementation of the Brady Handgun Violence Prevention Act,” Journal of the American Medical Association 284:5 [August 2, 2000] 585-591. They compared states for which the Brady Law had no effect (state law was already stricter) and states where it did make a change. "“Changes in rates of homicide and suicide for treatment and control
states were not significantly different….” The only category in which they found a statistically significant change caused by the Brady Law was a reduction in “firearms
suicides among persons aged 55 years or older….” Now, this is probably a good thing (although liberals believe that suicide a right that the government shouldn't block), but when even gun control advocates admit that the Brady Law didn't do any good on crime rates, that's quite an admission.

Background checks are certainly Constitutional, and there is no question in my mind that they probably prevent at least some people from getting guns who shouldn't have them. For example, mental patients who go through phases of lucidity might be able to buy a gun in a gun store during those periods--but the rest of the time, would be told to leave the store immediately.

I do not doubt that some convicted felons have been blocked from buying guns in a gun store by a background check--and to the extent that it slows them down on acquiring a gun, that's a good thing.

But I have no illusions that background checks operate as a substantial barrier to obtaining a gun for the crowd that worries me most: career criminals. Keep in mind that New York City was making sizable payments some years ago to jail inmates who were having guns smuggled into the jail, giving themselves a minor flesh wound, and then suing the city for leverage on their criminal cases. If a jail can't keep guns from reaching the inmates with strip searches, etc., I don't have much confidence that background checks are going to be completely effective. We already have one that applies to all gun dealers in the U.S.

Waiting periods? They have no established evidence of success. (They do, however, sometimes cause a person with an urgent need for a gun for self-defense to get killed.) See here for a chart showing what happened to murder rates in California as they kept lengthening the waiting period. The article explaining methodology is here.

Gun lock laws? Completely ineffective. Most of the gun accident problem in the home involves teenagers showing off--and gun locks really only keep very small children (the ones who don't know where the drill is) away. I do strongly encourage gun owners to buy a safe or strongbox for their gun, partly for that reason, and mostly to prevent burglary, but remember that the number of gun accidents involving a child finding a gun and killing someone with it is tiny--seldom more than a dozen a year in the whole U.S. Each is a tragedy, but look into many of these cases, and there are usually deeper and more serious problems in the home than just an unlocked gun.

Earl David Quammen -
3/16/2007

"I learn with great concern that [one] portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms. I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house." - Thomas Jefferson, letter to Jacob J. Brown, 1808. ME 11:432

"Knowing of the war when she left Jamaica, & that our coast was lined with small French privateers, she armed for her defence, & took one of those commissions usually called letters of marque. She arrived here safely without having had any rencounter of any sort. Can it be necessary to say that a merchant vessel is not a privateer? That tho' she has arms to defend herself in time of war, in the course of her regular commerce, this no more makes
her a privateer, than a husbandman following his plough, in time of war, with a knife or pistol in his pocket, is thereby made a soldier? The occupation of a privateer is attack and plunder, that of a merchant-vessel is commerce & self-preservation."

Journal of the House of Representatives of the United States,
WEDNESDAY, DECEMBER 24, 1806.

2. Resolved, That the President of the United States be authorized to accept of any company or companies of volunteers, either of artillery, cavalry, or infantry, who may associate and offer themselves for the service, (not exceeding thirty thousand men,) who shall be clothed and furnished with horses, at their own expense, and armed and equipped at the expense of the United States, except such of them as may choose to furnish their own arms, and whose commissioned officers shall be appointed by the respective State and Territorial authorities; who shall be liable to be called upon to do military duty at any time the President shall judge proper, within two years after he shall accept the same; and when called into actual service, and whilst remaining in the same, shall be under the same rules and regulations, and be entitled to the same pay, rations, forage, and allowance for clothing, with the regular troops of the United States.

And on the question that the House do agree with the Committee of the Whole House in their agreement to the first of the said resolutions,

Earl David Quammen -
3/16/2007

"The First Law of Nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war."

- Thomas Hobbes, "Leviathan", (Outlines the Laws of Nature), 1651

Pre-Constitution;

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

- William Blackstone, 1 Commentaries on the Laws of England 136, 1765–1769.

Post Constitution;

"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government...."

"....This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

- St. George Tucker, Blackstone's Commentaries, (1803).

"Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

- Tenche Coxe, 'Remarks on the First Part of the Amendments to the Federal Constitution' using the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people."

- Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

(Mr. Coxe was a prominent Philadelphian and political economist who was named assistant secretary of the treasury in 1790, commissioner of revenue in 1792, and purveyor of public supplies in 1803).

Those are the FACTS. And there is plenty of TRUE precedent to back them up;

"The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted."

- Thomas Jefferson, Nov. 13, 1787 letter to William S. Smith.

"Shall NOT be infringed" means precisely that which is written! The Right is a PRE-EXISTENT NATURAL one meant to be SECURED by the Constitution;

"It is a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution, which is considered as essential to the existence of the Government by those who promoted its adoption...."

"In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

- James Madison, June 8, 1789 House of Representatives, Amendments to the Constitution 8 June

Clayton Earl Cramer -
3/16/2007

The original text introduced by Rep. James Madison for this was three independent clauses: one that guaranteed the right of the people to keep and bear arms; one that stated that a well-regulated militia was the best security of a free state; and one that granted the right of conscientious objectors to not serve in the militia in person. (Some states had militia laws that allowed Quakers to pay for a substitute.)

The conscientious objector clause was scrapped for fear of abuse--both by those seeking to avoid service, and by some who were concerned that the government might declare someone "religiously scrupulous" of bearing arms as an excuse to disarm them.

The other two clauses were joined with a comma, instead of a semicolon. There is no surviving evidence that explains this committee editorial change. What little evidence from the period in terms of pamphlets, editorials, and private letters, shows that it was understood as an individual right--not a right of the states to maintain militias. Most telling of all is that Madison referred to the Bill of Rights as "private rights" and his original proposal for where to put the Second Amendment was not in the section of Art. I that grants powers to states, but the section that protects the rights of individuals, alongside the protection against ex post facto laws.

Clayton Earl Cramer -
3/16/2007

It is certainly "contentious" but that doesn't mean that it is incorrect. You claim that these studies have failed to account for confounding factors, and list "changes in national rates, number of police on the streets, economy etc." But as this review of the claims points out, Lott & Mustard's study included income data as well. That's not the only economic measure, but it suggests that you don't really understand the study as well as you think.

National changes in crime rates are relevant to a study of county-by-county changes in what way?

The number of police on the streets might be an important confounding factor, but unless you are going to claim that states that went shall issue just happened to increase the number of police on the streets at the same time--and other states did not--you don't have much of an argument.

The fact is that no state that has adopted shall issue has repealed that law; several have loosened the law substantially; and at least one, Alaska, completely abolished the requirement to have a permit to carry concealed.

This suggests that, at a minimum, shall issue is either a positive, or if it is a negative, it is so minor that no one in those states has managed to make a public policy case against the change. There have been a lot of opponents who changed sides. Harris County (Texas) District Attorney John Holmes was convinced that they were going to need more grand juries, more courtrooms, and another floor of the morgue--and he admitted after the law changed that it had worked without problem.

John Charles Crocker -
3/16/2007

According to the FBI gun violence has dropped steadily since 1993 with a small uptick in 2005 (the last for which they report on their website). For a majority of the population have gun control laws gotten more or less strict over that period?

Your argument about previous felony convictions seems to argue for background checks rather than against other measures.

Your '91 and '05 stats were not specifically for gun related crimes and so are not relevant.
Even is we assume these numbers map perfectly onto gun violence (which is highly doubtful) and we take the mean value you give for felony convictions that leaves ~40% of murders committed by people who can legally buy a gun.

In 2004 background checks prevented over 100,000 firearm purchases.

Do you oppose background checks and waiting periods? How about laws regarding gun locks? Removal of guns from the homes of domestic violence offenders?

John Charles Crocker -
3/16/2007

The issue is at the least contentious and the few studies I have read purporting to show lowered rates of violent crime with looser gun laws or concealed carry have not controlled for confounding factors (changes in national rates, number of police on the streets, economy etc.).

David Lawson -
3/16/2007

What would George Mason Do? I think he'd disagree with the gradual disarming of the population that is going on in this country.

You should change the name of your University!

Lawrence Brooks Hughes -
3/16/2007

Isn't it curious, then, that the Second Amendment doesn't say, "The right of the STATES to keep and bear arms shall not be infringed?" Just when did the words "states" and "people" become synonyms? I think you are checkmated by the words "of the people," no matter how many judges may have winked, nodded, and averted their eyes from this plain, beautiful and unambiguous language over the past 100 years.

Clayton Earl Cramer -
3/16/2007

I ignore Cornell's recent book because his interviews indicate that he is writing history about a parallel universe.

Clayton Earl Cramer -
3/16/2007

"Strict gun laws make it more difficult for all people including criminals to get guns. Certainly fewer guns means fewer accidental gun deaths and waiting periods can help to prevent "crimes of passion.""

However: highly motivated criminals--the ones that you worry about most--tend not to let laws about gun ownership block them much. After all, if you are planning murder, rape, and robbery, what's a gun control violation?

On the other hand, law-abiding adults, if there are serious obstacles to buying a gun, are unlikely to break the laws. After all, a gun control law violation is likely to be a serious matter to someone who has never even been arrested.

Gun accidents? Typically 5% of less of all gun deaths in the U.S.--and half of those are hunting accidents.

Crimes of passion? Yes, there are circumstances where nice, calm adults without any history of drugs or violent crime pick up a gun and kill someone, but those are pretty exceptional. The FBI studied the connection of guns and criminal history in 1971 and 1975. The 1971 study found that 45.6% of those charged with murder had previous felony convictions, and 77.2% had previous felony arrests. When they checked again in 1975, the numbers were 57.1% and 67.6%, respectively. In 1991, about 5% of U.S. murders were committed by mental patients who had stopping taking their prescribed medications. In 2005, about 5% of U.S. murders (where the offender was known) were under 18, so they can't legally buy a gun. Add these all together, and they start painting a picture of murderers that is quite atypical. Focus on them--the vast majority of adults without criminal histories won't ever misuse a gun.

Clayton Earl Cramer -
3/16/2007

It turns out that quite a number of other economists have examined Dr. Lott's work on this, and concluded that he was correct. See this list on Dr. Lott's web site. I've read at least a couple of these papers, so I know that Dr. Lott isn't just imagining them.

By the way, I've had enough email exchanges with Professor Donohue that I no longer consider him either an honest pursuer of truth on this matter, or particularly well informed on the subject. See for why.

Clayton Earl Cramer -
3/16/2007

This is incorrect on a number of different levels. The National Guard was established under Congressional authority to raise standing armies--it is not legally a militia, as the Supreme Court ruled in Perpich v. Department of Defense (1990).

Paul Noonan -
3/15/2007

It isn't the right of the individual soldier/militiaman to keep his weapon, it's the right of the state to maintain a militia that is independent of the federal government. The Second Amendment guarantees that if New York (for example) wants to keep a militia totally funded by state funds (and thus independent of the National Guard) it may do so. The federal government may not order its weapons to be turned over or call its members up for service in Iraq (or anywhere else).

About half of the states maintain what are today known as State Defense Forces. These receive no federal funding and are not part of the National Guard system. In fact, in some states the members have to pay for their own weapons and even uniforms. The Second Amendment simply guarantees that these forces cannot be disarmed or dissolved by the federal government.

John R. Maass -
3/15/2007

Spitzer ignores Dr. Saul Cornell's recent book that rejects the all or nothing type of argument in which it has to be all individual right or all a militia interpretation. I wonder why.....

John Charles Crocker -
3/15/2007

You have previously and proudly admitted to having no understanding of science or statistics, so you have absolutely no standing to make any claims about his methodology (which is flawed) or his conclusions (which are disputed).

If you actually read and understood the Lott study you should read,
Shooting Down the "More Guns, Less Crime" Hypothesis. I Ayres and JJ Donohue III - Stanford Law Review, 2003

I don't know enough about the Alger Hiss case to have a definitive opinion, but it appears from a cursory look to still be a point of controversy.

BTW AEI is about as reliable as the WSJ editorial pages. You evidently implicitly trust both regardless of the weight of evidence as to their misinformation.

Lawrence Brooks Hughes -
3/15/2007

Lott is today a resident scholar at AEI. He was previously John M. Olin Visiting Law & Economics Fellow at U. of Chicago Law School. Mr. Lott has done to champions of gun control laws what Allen Weinstein did to believers in the innocence of Alger Hiss... His samples are enormous, his methodology is impeccable, and his conclusions are irrefutable.

John Charles Crocker -
3/14/2007

DC is one densely packed city with huge income disparities and massive poverty. It is hardly fair to compare it to any state.

New York is 22nd in violent crime and 29th in murder placing it firmly in the middle. California is at 16 and 12. Alaska, Florida, South Carolina, Louisiana, Oklahoma, New Mexico, Texas, Nevada and Tennessee all have higher rates of violent crime than either California and New York despite much more lax gun laws, generally lower population densities, and generally less income disparity.

The states with the lowest rates of violent crime tend to be those with exceptionally low population densities. It is difficult to make good comparisons as there are many confounding factors, but the bald assertion to which I was replying has absolutely no basis in fact.

Strict gun laws make it more difficult for all people including criminals to get guns. Certainly fewer guns means fewer accidental gun deaths and waiting periods can help to prevent "crimes of passion."

BTW I generally favor broader rather more limited interpretations of freedoms granted in the constitution and its amendments, including the 2nd.

Also BTW the study to which LBH referred has been thoroughly debunked.

Chris Grant -
3/14/2007

john charles crocker on March 13, 2007 at 7:04 PM
As surprising as this may be to you DC is not a state.

Splitting of semantic hairs. It is a territory (note: not a Territory, but a territory) within the United States with defined borders and a functioning government, and the citizens therein are bound by laws, both Federal and "State"-- in this case, the gun ban which is not a universally-applied law.

It is essentially a "state" of the USA in all but name.

As for gun crime in states with loose gun control, you are correct in that population density has a lot to do with it, but so do things like economics, poverty, education, and opportunity. Idaho is awash in a sea of guns yet we don't have a correspondingly high murder rate out here; Vermont has no restrictions on concealed carry and I have yet to hear of them as a murder capital of a model railroad town, much less anything larger.

New York, Washington DC, California... lots of violence and murder, but also at the same time strictest gun controls... as well as population density, income disparity... many factors come into it. Gun control as a universal band-aid to social ills is a simplistic, black-and-white argument.

Note that I, personally, am not arguing the opposite-- that more guns would automatically deter crime. But since gun control laws would only restrict those who follow laws-- ie, NOT criminals-- then I dismiss it as a pointless gesture.

Lawrence Brooks Hughes -
3/14/2007

When I was a soldier I didn't have the right to keep and bear my weapon when my superior officer told me to put it in the armory. It is absurd to contend the right "of the people" to keep and bear arms pertains to soldiers serving in a militia.

Thank you, Mike Battaglia, for the quote from Federalist 46 above. Madison's remark about the people's lack of gun rights in other nations is every bit as applicable today as it was in the 18th century.

Clayton Earl Cramer -
3/13/2007

You are correct, and because Miller was not represented at the Supreme Court, only one side presented a brief--and that was the Solicitor General, attempting to defend the statute. Interestingly enough, the Supreme Court did not buy his claim that there was no individual right. Instead, they focused on the failure of the trial judge to seek expert testimony that a short-barreled shotgun constituted a militia weapon--and that's really all that they decided.

Brannon P. Dening has a splendid law review article called "Can the Simple Cite Be Trusted?" about how courts, law review articles, and gun control advocates have a long history of citing the Miller decision for all sorts of things that it didn't say--and often reversing the order of the parties in the manner that you describe.

The big difficulty here is that restrictive gun control is so important to a lot of academics that they don't let the facts get in their way very often.

John Charles Crocker -
3/13/2007

As surprising as this may be to you DC is not a state.

6 of 10 states with the highest murder rates are concealed carry states and 9 of 10 states with the lowest murder rates are not concealed carry states.

Crime stats in general have much more to do with population density than gun control laws, but there is no convincing evidence that more guns mean less violent crime.

Ben James Thompson -
3/13/2007

I believe Prof. Spitzer repeats a common error. As he would have it, the Supreme Court in US v Miller "upheld Miller’s conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines ..."

This is, I believe, a mistaken reading of the record. The decision in Miller clearly states that a demurrer was entered by Miller in the District Court (which had original jurisdiction). A demurrer was then ancestor of today's motion to dismiss.

In this case, as the Miller opinion makes clear, the District Court "sustained the demurrer and quashed the indictment." The opinion then immediately states: "The cause is here by direct appeal."

That explains why the appellant (whose name comes first) is the US (as in US v. Miller). In other words, there was no conviction at the District Court level for the Supreme Court to reverse.

The confusion seems to stem from scholars rushing through the jurisdictional part of the decision, to get to the meat, where the meat then concludes with this phrase:

"We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings."

When confronted with the word 'judgment', later readers seem to have jumped to the concxlusion that a conviction was involved, rather than a judgment sustaing a demurrer.

This is not an uncommon mistake. Such a constitutional authority as Sanford Levinson (hardly an anti-gun firebrand) states, on p.36 of The Oxford Companion to American Law, that the Supreme Court upheld the conviction in US v. Miller.

There may be a long history of such a meme in the literature, for all I know. What I do know is that Judge Catherine Holcomb Hall, of the Ninth Circuit, in Hickman v. Block (1996), makes the same mistake.

I hope I'm not reading the materials incorrectly. They are easily available. Here's a start:

Chris Grant -
3/13/2007

Peter K. Clarke on March 12, 2007 at 6:37 PM
"it is very difficult to carry a gun onto an international flight."

Which explains the gun crimes of England...?

Peter K. Clarke on March 12, 2007 at 6:37 PM
"The reason why the debate is so carried out in these terms, however, seems to be that the gun nuts have so successfully intimidated US politicians that token legal debates about token gun control is most of what passes for discussion on this subject in America."

Actually, it should read like this:
"The reason why this pointless debate is carried out at all seems to be that the peddlers of fear and ignorance have so successfully intimidated US politicians and preyed on the general public's misperceptions that legal debates about token, do-nothing/feel-good gun control is most of what passes for discussion on this subject in America."

Chris Grant -
3/13/2007

john charles crocker on March 12, 2007 at 5:59 PM:
In the US states with stricter gun regulation have lower rates of violent crime.

Really? You mean like... Washington DC?

Lawrence Brooks Hughes -
3/13/2007

It's beautiful, really, how Madison gets the last laugh from the grave, 200 years later, with his words, "of the people."

John Charles Crocker -
3/13/2007

"The proponents of gun control insist that it is a "dated" amendment, reflecting America's recent experience with British tyranny (well they don't use those words) that bears no relevance to today and thus can be discarded."
Who makes this argument?
Please provide quotes to this effect from some prominent figures.

Jason B Keuter -
3/13/2007

The second amendment is "historified" more than any other. The proponents of gun control insist that it is a "dated" amendment, reflecting America's recent experience with British tyranny (well they don't use those words) that bears no relevance to today and thus can be discarded.

The problem with this line of reasoning is not that it isn't true, it's that it applies to all the other original ten amendments as well. The Bill of Rights reflects the experience of a people who lacked democractic rights and, more importantly, a democratic government in which to preserve those rights.

The right to protest, for example, is pretty unnecessary in a democratic government. Governmental policy, made by representatives of the electorate reflects the will of the electorate. Therefore, protest and assembly are not really rights as much as they are mechanisms for numerical minorities to disrupt the will of the people.

Thus, if one wishes to locate the second amendment in history, they must do the same with all the other amendments. Or, they can pick and choose when America has presumably outgrown its constitution and have judges decide such matters in contravention of the amendment process itself.

If people don't like guns, then they need to amend the constitution. As the second amendmendment stands now, the people have the right to bear arms - which means have guns. They also have the right to disrupt rush hour traffic to protest governmental policy that reflects the will of the people. These rights can only be taken away with an amendment speficying they're no longer needed.
Good luck on that one.

Mike Battaglia -
3/13/2007

"[I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose." - Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898].

"For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." - [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)

To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege. [Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)]

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.)

The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country... — James Madison, I Annals of Congress 434, June 8, 1789.

Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? — Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836

That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms... — Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850).

The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions. [State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)]

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. — James Madison, The Federalist Papers, No. 46

The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]

The people are not to be disarmed of their weapons. They are left in full possession of them. — Zachariah Johnson, 3 Elliot, Debates at 646

And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms....the tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. — Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy p. 20, S. Padover ed., 1939

As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms. — Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

"None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important, but especially so at a moment when rights the most essential to our welfare have been violated." --Thomas Jefferson, 1803. ME 10:365

"To preserve liberty, it is essential that the whole body of people always possess arms..." - Richard Henry Lee, 1788, Member of the First U.S. Senate.

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. - Thomas Jefferson

The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country... — James Madison, I Annals of Congress 434, June 8, 1789.

Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. — St. George Tucker, in his edition of 'Blackstone's Commentaries,' 1:300 (1803).

"The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent (as in electing their functionaries executive and legislative, and deciding by a jury of themselves in all judiciary cases in which any fact is involved), or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." --Thomas Jefferson to John Cartwright, 1824. ME 16:45

Michael J Pearce -
3/13/2007

So how does the militia get the weapons? What is the militia?

mark safranski -
3/13/2007

Lisa,

I'm hard-pressed to see how implicit rights to such things as privacy, abortion and the like can be discerned from the text of the Bill of Rights while adhering to an interpretation of the 2nd amendment that is more restrictive than the literal text itself.

Recognition of liberties reinforce one another. Attacking the scope of one creates logical arguments that inevitably are used to narrow those of others at some later date.

Lisa Kazmier -
3/13/2007

I guess being a "strict constructionalist" doesn't apply to the 2nd amendment. More like "what we want it to read," whereas at least privacy is part of the view that whatever the Constitution does not limit the people have the right. Hmm.

Rob Willis -
3/12/2007

The dissenting voice in this case had several problems, including the selected folling examples:

-This judge tries to suggest that DC, not being a state, was not covered under the "militia" provision, ignoring the fact that DC was historically host to several militia groups, including those who were among the first to muster in defense of the capital in 1861. The "non-federal" nature of these militiias was amply demonstrated by the fact that they had to volunteer themselves into a specific contract of federal service-- and many of the rank and file of these groups, who help southern sympathies, refused to do so. Hardly the essence, legally or factually, of the later National Guard structure. Militias served at the whim of themselves, not the government.

The other problem, typical in these cases, was to transfer the right to possess to the "state", not the individual, an aging increasingly tranparent dodge.

-In Pittsburgh, PA, one long-standing militia organization volunteered for for the Span-Am war in 1898, only to be refused by the newly forming Guard, whose commander was interested in a pool of soldiers who could be controlled by govt. authority without the political problems. Even so, the militia group, the Washington Infantry, still received the support of their group from the state, and the state actually continued to sell them ammo for their ex-military issue rifles. This suggests that the militia was seen even by state authorities as a resource that was extra-governmental in its purpose.

John Charles Crocker -
3/12/2007

"I believe the weight of evidence today shows that the net effect of gun control laws is to encourage, not discourage crime."
You may believe this, but do you have any evidence?
In the US states with stricter gun regulation have lower rates of violent crime.

Chris Grant -
3/12/2007

The old "what about nukes" canard is foolish strawmanning. An explosive of any type is a different classification of arms and differes from firearms in that its destructive energy is unleashed in an unfocused, omnidirectional ball of energy that the bearer cannot have any reasonable control over.

Firearms, on the other hand, require aiming (or at least pointing) in a chosen direction; an act of will and control over which the firer has considerable power. With that power comes the responsibility to make a informed and skilled target selection-- failure reflects obvious liability on the firer.

Chris Grant -
3/12/2007

Especially in regards to the 14th Amendment, which made all people equal under the law, not just land-owning white males. Because the National Guard must meet Federal training and deployment standards, they are also under Federal deployment restrictions-- women cannot serve in combat arms, and epileptics, diabetics, color-blind, etc... cannot serve in many areas or at all.

It cannnot be considered a "militia" of "the people" but a select-- and, by necessaity, discriminatory-- reserve.

Chris Grant -
3/12/2007

If indeed the “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” refers to a collective (milita) right, then so too does the right of "the people" to free speech refer only to the organized, state press; the right of "the people" to be free of unreasonable search and siezure refer to buildings and people on state-owned land. And so on.

If "the people" referenced in all other amendments are individuals, why then are "the people" referenced in the 2nd amendment only considered as a mass?

Clayton Earl Cramer -
3/12/2007

Very true. The Cruikshank case involved freedmen defending a county courthouse. They eventually surrendered to the Klansmen--who then murdered them all. It is amusing to see liberals citing precedents that freed Klansmen for murder; prevented unionists from defending themselves from government goon squads; and in the case of Miller v. Texas, punished a man whose arrested by motivated by the crime of having a black wife.

Of course, this would require liberals to actually study the history involved.

Gregory J Prickett -
3/12/2007

According to Spitzer, we must always adhere to precedent, even if terrible and clearly out of line with the Constitution.

If this were the case, then Plessy v. Ferguson (1896) stating that "seperate but equal" was constitutional would still be the law of the land. Obviously this is not the case, due to Brown v. Board of Education overturning that decision.

In a like manner, in Betts v. Brady (1943), the Supreme Court held that Betts did not have a right to appointed counsel in his robbery trial. Thankfully this was overturned by Gideon v. Wainright (1963) and Escobedo v. Illinois (1964).

Bad precedent is just that - bad - and can easily be overturned.

As a side note, Spitzer ignores the facts that the cases he claims are clear and decisive are anything but that.

Presser v. Illinois does not address the question of an individual right to keep and bear arms, stating "Whether a State may not prohibit its citizens from keeping or bearing arms for other than militia purposes is a question which need not be considered..." If it doesn't address the question Mr. Spitzer, then there is no precedent established.

In a like manner, Mr. Spitzer misconstrues the other decisions, but I won't list all the details.

Charles Lee Jackson -
3/12/2007

Mr. Cramer wrote:
It was a lot easier to disarm the freedmen after murdering them.

I note that the reverse is also true: </i>It was a lot easier to murder the freedmen after disarming them.</i>

Clayton Earl Cramer -
3/12/2007

"The Parker majority view, however, asserts that Miller protects only a “weapons-based” right focusing “only on what arms are protected by the Second Amendment,” because the Supreme Court upheld Miller’s conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines, as possession of that weapon held no “reasonable relationship” to a militia. Parker’s twisted logic is that the Second Amendment is about protecting weapons ownership if the weapon has military utility, from assault rifles and bazookas to tactical nuclear weapons."

Short-barreled shotguns were actually used by U.S. forces during World War I for trench warfare. That may be why the trial judge in U.S. v. Miller (1939) took it under judicial notice that it qualified as a militia weapon.

I don't recall seeing any argument in Parker about tactical nukes. What page was that on?

The term "arms," understood in the context of 1789, would be those arms that you could pick up and carry. A pistol, certainly, or a rifle, or a fowling piece, commonly used in militia service during the Revolution (and quite similar in size to the short-barreled shotgun that was at issue in Miller). Artillery? I don't think so. Even Governor Schwarzenegger isn't that strong!

The Parker decision raises the prospect of militia utility precisely because Miller erroneously raised that claim, relying on a few exceptional Southern state supreme court decisions that sought to limit the arms protected to military weapons.

Clayton Earl Cramer -
3/12/2007

There's a good reason that many of these precedents weren't cited--and if you read the history of them, you'll see why.

Cruikshank? The Supreme Court was looking for a way to end prosecution of Klansmen who had disarmed dozens of freedmen. (It was a lot easier to disarm the freedmen after murdering them.) Cruikshank not only found that the Second Amendment didn't apply in this situation, but similarly with respect to the right to peaceably assemble.

Presser? The Illinois government was using the National Guard to terrorize unionists, and they responded by forming their own military organization. What was prohibited was an armed body of men marching through the streets--the relevance to individuals being armed is pretty small. More importantly, the decision doesn't say what Spitzer wasn't it to say.

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

If this were a right of the states, why did the Supreme Court not say so? The decision also makes this interesting claim:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

If the right in question belongs to the states, not individuals, why use the phrase "even ;aying the constitutional provision in question out of view"? If it was as clearly a state right, why not say so?

Miller v. Texas? The big problem with this case is that the Supreme Court did not claim that the right in question belonged to the states; they argued that it was a limitation only the federal government:

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.

George L Lyon -
3/12/2007

However, that appears to be what judges and legal scholars do who want to read out of the Constitution provisions they don't like, or read into the Constitution rights they like. As Judge Kozinski pointed out, Judges are very good at finding expansive rights, when they want to.

George L Lyon -
3/12/2007

With respect, Prof. Spitzer misreads the cases he cites, and apparently has not closely read Judge Silberman's opinion.

In United States v. Cruikshank, Justice Waite said

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States.

This opinion is not at all inconsistent with Judge Silberman's opinion. Indeed, it recognizes that the right to keep and bear arms predated the Constitution. The right is not granted by the second amendment, it is recognized and protected by it.

Presser v. Illinois held that a group of armed men did not have the right to so march down the street. Presser also pointed out the view held at the time that the second amendment applies only to the federal government. DC is of course a federal enclave. Presser also had nothing to do with an individual right to possess a firearm and did not articulate the so-called "collective rights" view of the second amendment. I defy Prof. Spitzer to find any support for that model in any Supreme Court decision, Miller included.

Finally as to Miller, both Judge Silberman and Judge Henderson discuss it, Silberman in depth and Henderson summarily and in the conclusory terms which mark virtually all court opinions that have previously sought to marginalize the amendment.

Oscar Chamberlain -
3/12/2007

Mr. Hughes. You may or may not be correct about the impact of widespread gun ownership, but, at least in theory, courts are not supported to validate (or invalidate) rights because they seem like a good idea or not.

Lawrence Brooks Hughes -
3/12/2007

The Second Amendment was the product of many hands, but the hand which first drafted it was James Madison's. And Mr. Madison began his inspiring text with the words, "The right of the people to keep and bear arms shall not be infringed," without making any reference to militias. So there is no question what HE meant.
It is also interesting because it acknowledged, by use of the word "infringed," that the right existed in America prior to the adoption of the Second Amendment.

You are probably correct when you say all the legal precedents here, since the Sullivan Act and other long-ago legal tests, that only militias have the right to keep and bear arms.. But these precedents were issued prior to the excellent study, "More Guns, Less Crime," by that U. of Chicago teacher, and were issued prior to the flurry of repeals of state concealed handgun laws, which have dramatically lowered crime recently, as state legislators from coast to coast have embraced the overwhelming facts. I believe the weight of evidence today shows that the net effect of gun control laws is to encourage, not discourage crime. What would be so horrible about allowing people to protect themselves again? If a change back doesn't lower crime the Congress and the legislatures can always drag us back to the present system. Let us not be hostage to dusty law books when people are dying unnecessarily in the streets. Let us improve modern life by restoring the Second Amendment to agree with James Madison's conception.

mark safranski -
3/12/2007

The National Guard, usually cited by those opposed to individual firearm ownership, as a "militia" would constitute a "standing army" in the eyes of the framers, being both completely dependent on the Federal government for funding, training and is completely integrated into a national military command. The President "activates" guard units without regard to the wishes of the States.

Indeed, Guardsmen, once taunted as " No-Go's" are so integral to the U.S. Army today that we could not conduct a normal military campaign without them.

Whatever you may think of that in terms of military policy, the Guard is no longer a "militia" in the constitutional sense but part of functional part of the regular Army reserve.

Carl Lot -
3/11/2007

Lets not forget about U.S. V. Verdugo-Urquidez (1990). The Supreme Court observed in U.S. v. Verdugo-Urquidez (1990) "`the people` seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by `the People of the United States.` The Second Amendment protects `the right of the people to keep and bear Arms,` and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to `the people.`"